Appeal No. 2006-3121
Application No. 10/165,083
31 recites, in pertinent part, “[a] computer program product in a computer
readable medium….” [answer, page 9; emphasis added]. Turning to the
specification, the examiner notes appellants expressly identify two types of
computer readable media: (1) recordable-type (e.g., floppy disks, hard disks, CD-
ROMs, etc.), and (2) transmission-type (e.g., wired or wireless communication
links using transmission forms, such as RF or lightwave transmissions) [id.;
specification, page 16]. In short, the scope of claim 31 includes non-statutory
transmission-type media.
The examiner, however, contrasts claim 31 with claim 25 which the
examiner contends recites statutory subject matter. Specifically, the examiner
notes that claim 25 recites that the computer program product is stored in a
computer readable medium. Accordingly, the computer readable medium is
limited to recordable-type (i.e., statutory) forms. The computer program product
of claim 31, however, is merely “in” a computer readable medium and
consequently impermissibly includes non-statutory transmission-type media
[answer, pages 9 and 10].
Appellants respond that claim 31 recites functional descriptive material
that renders the claim statutory under § 101 since such functional descriptive
material is recorded on “some” computer readable medium. Appellants
emphasize that the MPEP does not distinguish between various types of media
that are considered to be statutory and non-statutory [reply brief, pages 2 and 3].
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